What is falsely holding out as a lawyer under Texas law?
Texas Penal Code § 38.122 makes it an offense if, with intent to obtain an economic benefit, a person holds himself or herself out as a lawyer while not currently licensed and in good standing in this state, another state, or a foreign country. The offense is a third-degree felony, sitting in Chapter 38 of the Penal Code alongside the related misdemeanor of unauthorized practice of law in § 38.123.
Texas Penal Code § 38.122 reads, in its operative part: “A person commits an offense if, with intent to obtain an economic benefit for himself or herself, the person holds himself or herself out as a lawyer, unless he or she is currently licensed to practice law in this state, another state, or a foreign country and is in good standing with the State Bar of Texas and the state bar or licensing authority of any and all other states and foreign countries where licensed.” The offense is a third-degree felony. It sits in Chapter 38 of the Penal Code, the chapter on obstructing governmental operation, alongside the related misdemeanor of unauthorized practice of law in § 38.123.
Two features of the statute do most of the work in real cases. First, it does not require that you say the magic word “lawyer.” Courts have read “holds himself out” broadly — using “Attorney at Law” on a check endorsement, signing a demand letter as counsel, or accepting a fee to represent someone can all qualify. Second, the licensing language is an exception, not an element the State must disprove from scratch; if you claim the benefit of a current, good-standing license elsewhere, the burden of producing that evidence is effectively on you. That is why this charge so often reaches people who were once licensed, who are licensed somewhere else, or who occupy a gray zone between authorized support work and independent practice.
The offense protects the public, not the legal profession’s market share. The Court of Criminal Appeals has framed the goal as shielding people “inexperienced and unlearned in legal matters” from services that require a lawyer’s training. Celis, Mauricio Rodriguez, No. PD-1585-11 (Tex. Crim. App. May 15, 2013). Understanding that purpose matters at trial, because it shapes how a jury views conduct that caused no actual harm.
What are the penalties for § 38.122 and § 38.123?
Falsely holding oneself out as a lawyer is a third-degree felony — under Penal Code § 12.34, 2 to 10 years in prison and a fine up to $10,000. Unauthorized practice of law under § 38.123 is a Class A misdemeanor, punishable under § 12.21 by up to one year in county jail and a fine up to $4,000.
Falsely holding oneself out as a lawyer is a third-degree felony, which under Penal Code § 12.34 carries 2 to 10 years in prison and a fine up to $10,000. Unauthorized practice of law under § 38.123 is a Class A misdemeanor, punishable under § 12.21 by up to one year in county jail and a fine up to $4,000. The table sets the ranges side by side.
| Statute | Offense | Classification | Incarceration | Maximum fine |
|---|---|---|---|---|
| § 38.122 | Falsely holding oneself out as a lawyer | Third-degree felony | 2–10 years (TDCJ) | $10,000 |
| § 38.123 | Unauthorized practice of law | Class A misdemeanor | Up to 1 year (county jail) | $4,000 |
| Repeat felony | § 38.122 with prior felony record | Enhanced under §§ 12.42–12.425 | Up to 2–20 years on proof of priors | $10,000 |
Two practical points often surprise clients. A felony conviction means the realistic range is governed not just by the statute but by your criminal history; a defendant with prior felony convictions can face habitual-offender enhancement under §§ 12.42–12.425. And the State Bar of Texas can independently pursue a civil injunction for the same conduct under Chapter 81 of the Government Code, so a person may face a criminal case and a civil enforcement action arising from the same facts.
What must the State prove?
To convict under § 38.122, the State must prove three elements beyond a reasonable doubt: a person not currently licensed and in good standing, with intent to obtain an economic benefit, who held himself or herself out as a lawyer. Rodriguez v. State, 336 S.W.3d 294, 300 (Tex. App.—San Antonio 2010). The statute attaches a culpable mental state to only the economic-benefit element.
To convict under § 38.122, the prosecution must prove each element beyond a reasonable doubt. The San Antonio Court of Appeals laid out the essential elements: a person not currently licensed and in good standing, with intent to obtain an economic benefit, who held himself or herself out as a lawyer. Rodriguez v. State, 336 S.W.3d 294, 300 (Tex. App.—San Antonio 2010).[5]
- 1. A holding-out as a lawyer
- The defendant affirmatively represented, by words or conduct, that he or she is a lawyer or licensed attorney. The manner of holding out is not material — a business card, a signed pleading, an “Attorney at Law” endorsement, or an oral claim can each suffice.
- 2. Intent to obtain an economic benefit
- At the time of the holding-out, the defendant intended to gain something of economic value. “Economic benefit” is defined by § 38.01(3) to include accepting or offering to accept employment for a fee, accepting or offering to accept a fee, or entering a fee contract.
- 3. Not licensed and in good standing
- The defendant was not currently licensed to practice law in Texas, another state, or a foreign country and in good standing with the relevant licensing authority. A current, good-standing license elsewhere is an exception that can defeat the charge.
Crucially, the statute attaches a mental state to only one of these elements. The Court of Criminal Appeals held that “the plain language of the false-lawyer statute requires proof of a mental state only as to the economic-benefit element and plainly dispenses with any additional culpable-mental-state requirement.” Celis v. State, 416 S.W.3d 419, 430 (Tex. Crim. App. 2013).[4] In other words, the State must prove you intended to obtain an economic benefit, but it does not have to prove you knew you were unlicensed or knew you were out of good standing. That makes the economic-benefit element the single most contested part of most prosecutions — and the part where a defense most often finds traction.
How is § 38.122 different from § 38.123?
Texas splits unauthorized-practice conduct into two distinct crimes. Section 38.122 punishes the false claim of status — saying or implying you are a lawyer — for economic benefit, and it is a felony. Section 38.123 punishes doing a lawyer’s work without a license, and it is a Class A misdemeanor. A person can be exposed under one statute and not the other.
People use “unauthorized practice of law” loosely, but Texas splits the conduct into two distinct crimes with very different stakes. Section 38.122 punishes the false claim of status — saying or implying you are a lawyer — for economic benefit, and it is a felony. Section 38.123 punishes doing the work of a lawyer without a license, and it is a Class A misdemeanor. The distinction matters because a person can be exposed under one statute and not the other.
A non-attorney who quietly drafts a will for a neighbor for $50, never claiming to be a lawyer, is more naturally a § 38.123 problem. A person who prints “Attorney at Law” business cards and signs a fee agreement is squarely in § 38.122 territory even if the underlying legal work was thin. Many indictments charge both, and one of the most valuable early defense moves is pressing the State to commit to a theory: did our client falsely claim to be a lawyer, or merely perform a service that arguably required a license? Forcing that choice can drive a felony down to a misdemeanor, or expose a charging gap.
Section 38.123 also lists specific acts that count as the practice of law — giving advice about legal rights, drafting documents that affect legal rights, and representing another in a proceeding — and it contains its own carve-outs. Understanding which subsection the State is leaning on tells you which facts will decide the case.
How do prosecutors prove these cases?
The State builds these cases out of paper and witnesses, not forensics — engagement letters, fee receipts, canceled checks, advertising, websites, business cards, and emails, plus a complaining witness. On the economic-benefit element the State has a low but real bar: offering to accept a fee is enough, but genuinely free help can collapse the theory.
The State builds these cases out of paper and witnesses, not forensics. Expect the prosecution to gather engagement letters, fee receipts, canceled checks, advertising, websites, social-media profiles, business cards, and emails. The complaining witness — often a former client, sometimes a competing attorney or a court clerk who noticed an irregular filing — testifies about what the defendant said and what was paid.
On the economic-benefit element, the State has a low evidentiary bar but a real one. In Rodriguez, an immigration consultant argued the State had to prove she was “placed in a more advantageous position.” The court disagreed, holding the State “need not prove appellant was placed in a more advantageous position,” and that telling a client “we were going to need more money” was enough to show she “did not provide her services for free.” Rodriguez v. State, 336 S.W.3d 294, 301 (Tex. App.—San Antonio 2010).[5] The lesson cuts both ways: offering to accept a fee is enough for the State, but where the work was genuinely free or favor-based, the economic-benefit theory can collapse.
Because the holding-out element does not require a culpable mental state under Celis, prosecutors lean on documents that show an unmistakable claim of lawyer status — a signed “Attorney at Law” check, the letterhead, the courtroom appearance. A defense that demonstrates the client never actually claimed to be a lawyer, and that any “legal” service was incidental, attacks the case at its foundation.
Who gets charged — notarios, consultants, disbarred lawyers, paralegals
These prosecutions cluster around four recurring situations, and the defense looks different in each: immigration consultants and notarios, disbarred or suspended attorneys, independent paralegals and document preparers, and self-represented litigants who overstep while helping a friend or relative.
In our experience these prosecutions cluster around four recurring situations, and the defense looks different in each.
Notario and immigration-consultant cases
In much of Latin America, a notario público is a highly trained lawyer. In Texas, a notary public is not, and the title can mislead immigrant clients into thinking a consultant is an attorney. Charging the role with advising on visa eligibility, deportation defense, or asylum strategy for a fee can support both § 38.122 and § 38.123, and the Rodriguez case arose from exactly this setting. Only attorneys or non-attorneys with federal Department of Justice accreditation may represent clients before immigration courts, so the defense often turns on the line between filling out forms and giving legal advice.
Disbarred or suspended attorneys
Once a license is revoked or suspended, the lawyer is no longer in good standing and loses the statutory exception. Continuing to take fees, sign documents, or “consult” during a suspension can support a § 38.122 charge — and because intent and knowledge are easier to prove against someone who knew of the status change, these defendants face heightened risk. The defense requires careful attention to the exact dates of suspension and the nature of the post-suspension work.
Independent paralegals and document preparers
A paralegal under attorney supervision is protected. The exposure begins when the paralegal takes fees directly from clients, signs legal documents in their own name, gives independent legal advice, or appears in court. The decisive question is almost always supervision — who the supervising attorney was, and whether the work stayed within that supervision.
Self-represented litigants who overstep
Occasionally a person helping a friend or relative with a case drifts into representing them or signing documents as if counsel. These cases can be charged but often present strong no-economic-benefit and no-holding-out defenses, because the help was a favor rather than a business.
Can the charge be dismissed or expunged?
Yes, in the right case. Because § 38.122 hinges on two contestable elements — an affirmative holding-out and intent to obtain economic benefit — a weakness in either can support a dismissal, a reduction to the § 38.123 misdemeanor, or an acquittal. Deferred adjudication, non-disclosure, and expunction can also protect the record.
Yes, in the right case. Because § 38.122 hinges on two contestable elements — an affirmative holding-out and intent to obtain economic benefit — a weakness in either can support a motion to dismiss, a reduction to the § 38.123 misdemeanor, or an acquittal. Where the evidence is genuinely strong, the focus shifts to minimizing consequences and protecting the record.
Eligible first-time defendants may be candidates for deferred adjudication under Chapter 42A of the Code of Criminal Procedure. Completing deferred adjudication avoids a final conviction and, after the waiting period, can allow a petition for an order of non-disclosure to seal the record from most public view. If a case ends in dismissal or acquittal, an expunction under Chapter 55 of the Code of Criminal Procedure can erase the arrest record entirely. Each path has eligibility rules and timing requirements, and which one is available depends on how the case resolves — which is one more reason the early strategic decisions matter so much.
County-by-county practice notes
L and L Law Group defends these cases throughout North Texas from our Frisco office. Felony charges under § 38.122 are heard in the district courts of the county where the conduct occurred; § 38.123 misdemeanors are heard in the county courts at law. The observations below are general practice notes, not predictions about any case.
L and L Law Group defends these cases throughout North Texas from our Frisco office. Felony charges under § 38.122 are heard in the district courts of the county where the conduct occurred; § 38.123 misdemeanors are heard in the county courts at law. General venue practice varies by county.
- Collin County. Felony matters are handled at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney, with misdemeanors in the county courts at law. White-collar and professional-conduct cases here are typically document-intensive.
- Dallas County. Felony cases are heard at the Frank Crowley Courts Building. Dallas has the metroplex’s largest pool of professional-services defendants — immigration consultants, document-preparation businesses, and former attorneys — so prosecutors here see these charges more regularly than in surrounding counties.
- Denton County. Cases are heard at the Denton County Courts Building in Denton. As with Collin, the practical reality is a smaller volume of these charges and a corresponding premium on a defense that engages early.
- Tarrant County. Felony matters proceed at the Tim Curry Criminal Justice Center in Fort Worth, with misdemeanors in the county criminal courts.
We do not maintain a Dallas, Denton, or Fort Worth office; we defend cases in those counties from Frisco. What is consistent across all four is that a § 38.122 case is rarely a spur-of-the-moment arrest. It usually begins as a State Bar inquiry or an investigation, which gives a defense room to act before charges are filed.
Collateral consequences
A conviction reaches well past the courtroom. A third-degree felony carries the loss of firearm rights, the loss of voting rights while incarcerated or on supervision, lasting barriers to professional licensing, severe immigration consequences for non-citizens, and employment and housing screening — consequences especially damaging for a charge tied to dishonesty.
A conviction reaches well past the courtroom. A third-degree felony carries the loss of firearm rights under Penal Code § 46.04 and federal law at 18 U.S.C. § 922(g), the loss of voting rights while incarcerated or on supervision, and lasting barriers to professional licensing. For non-citizens, a fraud-related felony can carry severe immigration consequences, including removal — a particularly cruel irony in notario cases, where the defendant may be an immigrant too. Employment and housing applications routinely screen for felony records, and a conviction tied to dishonesty is especially damaging to anyone seeking work in a position of trust. These stakes are exactly why a reduction to the § 38.123 misdemeanor, deferred adjudication, or a clean dismissal can change a client’s life.
A note on how these cases actually arise
Two illustrative, entirely hypothetical situations show the line the statute draws. Hypothetical one: a suspended attorney, knowing of the suspension, keeps signing fee agreements as “Attorney at Law” and collecting retainers. Because that is an affirmative holding-out coupled with a clear profit motive, the conduct can fit § 38.122. Hypothetical two: a document-preparation business fills out standard forms for a flat fee, never claims to be a law firm, and refers legal questions out. That conduct is more naturally a § 38.123 question — or no crime at all — because there is no false claim of lawyer status. The difference is the claim of status and the profit motive, and that is exactly where the defense lives. (These scenarios are hypothetical and not based on any client matter.)
